Securities Law & Instruments

Headnote

Section 147 of the Securities Act (OSA) and sections 38 and 80 of the Commodity Futures Act (CFA) -- exemption from section 21(1) of the OSA requiring ICE Futures U.S. to be recognized as a stock exchange; exemption from section 15 of the CFA requiring ICE Futures U.S. to be registered as a commodity futures exchange; and exemption from the registration requirement in section 22 of the CFA for trades in contracts on ICE Futures U.S. by "hedgers", as defined in the CFA.

Statutes Cited

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 21, 147.

Commodity Futures Act, R.S.O. 1990, c. C.20, as am., ss. 15, 22, 38, 80.

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, CHAPTER S.5,

AS AMENDED (OSA)

AND

IN THE MATTER OF

THE COMMODITY FUTURES ACT,

R.S.O. 1990, CHAPTER C.20,

AS AMENDED (CFA)

AND

IN THE MATTER OF

ICE FUTURES U.S., INC.

 

ORDER

(Section 147 of the OSA and

sections 38 and 80 of the CFA)

WHEREAS ICE Futures U.S., Inc. (the "Applicant" or "ICE Futures U.S.") has filed an application dated May 15, 2009 (Application) with the Ontario Securities Commission (Commission) requesting:

(a) an order pursuant to section 147 of the OSA exempting the Applicant from the requirement to be recognized as a stock exchange under section 21 of the OSA;

(b) an order pursuant to section 80 of the CFA exempting the Applicant from the requirement to be registered as a commodity futures exchange under section 15 of the CFA; and

(c) an order pursuant to section 38 of the CFA exempting trades in contracts on ICE Futures U.S. by "hedgers" from the registration requirement under section 22 of the CFA (Hedger Relief);

AND WHEREAS the term "hedger" has the meaning ascribed to it in section 1(1) of the CFA (Hedger);

AND WHEREAS Rule 91-503 Trades in Commodity Futures Contracts and Commodity Futures Options Entered into on Commodity Futures Exchanges Situate Outside of Ontario exempts trades of commodity futures contracts or commodity futures options made on commodity futures exchanges not registered with or recognized by the Commission under the CFA from sections 25 and 53 of the OSA;

AND WHEREAS the Rule entitled In the Matter of Trading in Commodity Futures Contracts and Commodity Futures Options Entered into on Commodity Futures Exchanges in the United States of America, provides that section 33 of the CFA does not apply to trades entered into on commodity futures exchanges designated by the U.S. Commodity Futures Trading Commission under the U.S. Commodity Exchange Act;

AND WHEREAS the Applicant has represented to the Commission that:

1. The Applicant is a Delaware corporation, designated as a contract market by the United States Commodity Futures Trading Commission (the "CFTC") pursuant to Section 5 of the U.S. Commodity Exchange Act (the "CEA"). The Applicant is owned by the IntercontinentalExchange, Inc. ("ICE, Inc.") in accordance with a merger agreement consummated on January 12, 2007. ICE, Inc. is a public company governed by the laws of the State of Delaware and listed on the New York Stock Exchange. ICE Inc. and its affiliates are collectively referred to as the "ICE Group";

2. The Applicant is, in turn, the sole shareholder of ICE Clear U.S., Inc. (formerly known as the New York Clearing Corporation or NYCC) ("ICE Clear U.S."), the New York Futures Exchange, Inc. ("NYFE") and eCOPS, LLC;

3. ICE Clear U.S. is a New York corporation and is a registered derivatives clearing organization ("DCO") as set forth in Section 5b of the CEA. As such, ICE Clear U.S. is subject to the regulatory oversight of the CFTC and must remain in compliance with all of the Core Principles of Section 5b of the CEA (the "DCO Core Principles"). ICE Clear U.S. clears the trades executed on ICE Futures U.S.;

4. ICE Futures U.S. traces its history to 1870 when the predecessor exchanges were founded that would eventually become the Board of Trade of the City of New York, Inc. ("NYBOT"). On September 14, 2006, ICE, Inc. announced that it had entered into an agreement to acquire NYBOT for consideration of approximately $1 billion. On December 11, 2006, the merger was approved by the members of NYBOT and on January 12, 2007, the merger was consummated and NYBOT became a wholly-owned subsidiary of ICE, Inc.;

5. As a Designated Contract Market (a "DCM"), the Applicant offers a variety of agricultural or soft commodity futures contracts and options on futures contracts as well as futures contracts and options on futures contracts on certain financial and equity indices and currencies (collectively, "ICE Futures U.S. Contracts"). Historically the Applicant only offered trading of its contracts via open outcry floor trading. In 2007, the Applicant continued to offer floor trading, but also commenced electronic trading on a platform owned and operated by ICE, Inc. (known as the "ICE Platform") in its core agricultural futures products alongside traditional open outcry access. The contract terms of contracts available for electronic trading are the same as the contract terms of their equivalent floor traded contracts, and therefore fully fungible. Since that time the Applicant has continued to transition more of its contracts towards electronic trading. Although the Applicant has either commenced or will be commencing electronic trading for most of its commodity futures contracts, the applicant continues to maintain a floor trading operation for open outcry trading in respect of all of its listed commodity futures options contracts as well as with respect to certain of its less liquid commodity futures contracts.

6. Pursuant to its regulation by the CFTC, the Applicant is required to demonstrate its on-going compliance with various "Core Principles" applicable to all U.S. DCMs. The statutory Core Principles are described in Section 5 of the CEA and include requirements relating to, among others: fitness and properness; systems and controls; maintenance of an orderly market; investor protection; creation and maintenance of necessary records; the avoidance of anti-competitive actions; minimizing conflicts of interest in the decision-making process and establishing a process for resolving such conflicts; and rule-making and other matters including that the Applicant monitor and enforce compliance with its rules.

7. The CFTC monitors trading on ICE Futures U.S. and receives daily transaction and other reports from the Applicant. The CFTC also undertakes periodic in-depth audits or "rule reviews" of the Applicant's compliance with certain of the statutory Core Principles.

8. The Applicant is required under its regulations to provide to the CFTC on request access to all records. In addition, ICE Futures U.S. Rule 6.50 requires the disclosure of information to the regulatory authority of any foreign jurisdiction in which it has been approved to conduct business, if such disclosure is a condition of approval.

9. The Applicant proposes to offer direct electronic access to trading in ICE Futures U.S. Contracts through the ICE Platform to prospective participants in Ontario ("Ontario Participants"), either by way of (i) membership in ICE Futures U.S., (ii) via direct access sponsored by a member of ICE Clear U.S. (a "Clearing Member") (such non-Clearing Member participants, "Direct Access Users"), or (iii) through order-routing arrangements where orders are routed through a Clearing Member onto the exchange.

10. The Applicant expects that potential Ontario Participants that may seek to become members, Direct Access Users or order-routing clients of a Clearing Member will be (i) dealers that are engaged in the business of trading commodity futures and commodity options in Ontario and (ii) Hedgers.

11. ICE Futures U.S. Contracts fall under the definitions of "commodity futures contract" or "commodity futures option" set out in Section 1 of the CFA. The Applicant is therefore considered a "commodity futures exchange" as defined in Section 1 of the CFA and is prohibited from carrying on business in Ontario unless it is registered or exempt from registration as an exchange under Section 15 of the CFA.

12. The Applicant seeks to provide Ontario Participants with direct, electronic access to trading in ICE Futures U.S. Contracts and as a result, is considered by the Commission to be "carrying on business as a commodity futures exchange" in Ontario.

13. The Applicant is not registered with or recognized by the Commission as a commodity futures exchange under the CFA and no ICE Futures U.S. Contracts have been accepted by the Director (as defined in the OSA) under the CFA, therefore, ICE Futures U.S. Contracts are considered "securities" under paragraph (p) of the definition of "security" set out in Section 1(1) of the OSA and the Applicant is considered a "stock exchange" under the OSA and is prohibited from carrying on business in Ontario unless it is recognized or exempt from recognition under section 21 of the OSA.

14. As above, since the Applicant seeks to provide Ontario Participants with direct, electronic access to trading in ICE Futures U.S. Contracts it is considered by the Commission to be "carrying on business as a stock exchange" in Ontario.

15. The exemption from registration in section 32(1)(a) of the CFA applies for trades "by a hedger through a dealer". This exemption will be available for trades in ICE Futures U.S. Contracts by Ontario resident hedgers that route orders to ICE Futures U.S. through ICE Futures U.S. Clearing Members that are dealers, however, this exemption will not be available for trades in ICE Futures U.S. Contracts by Ontario resident hedgers that become Direct Access Users or non-clearing ICE Futures U.S. members since they will have direct electronic access to ICE Futures U.S. and will not execute trades through dealers.

16. The Applicant maintains rigorous membership criteria that all applicants must satisfy before their applications are considered by its membership committee, including, among others: fitness criteria; suitable qualifications and experience; adequate training and supervision; proper authorizations, or exemptions to trade; and suitable financial standing.

17. All Clearing Members that guarantee a Direct Access User or provide order routing access to ICE Futures U.S. to an Ontario client will be registered futures commission merchants with the CFTC. Such clearing members are subject to the compliance requirements of the CEA, the CFTC and the National Futures Association as they relate to customer accounts, including various know-your-client, suitability, risk-disclosure, anti-money laundering and anti-fraud requirements. These requirements, in conjunction with the ICE Clear U.S. margin requirements that apply to all Clearing Members and subsequently to their clients whose trades they guarantee, ensure that Ontario firms seeking to become Direct Access Users or gain order routing access through a Clearing Member are subjected to appropriate due diligence procedures and fitness criteria. In addition, Direct Access Users are required to sign the ICE Futures U.S. Electronic User Agreement making them responsible for, among other things, compliance with the Applicant's exchange rules.

18. Each applicant for ICE Futures U.S. membership or for status as a Direct Access User of ICE Futures U.S. electronic trading that intends to rely on the Hedger Relief will be required, as part of the application documentation to:

(a) represent that it is a Hedger;

(b) acknowledge that the Applicant deems the Hedger representation to be repeated by the applicant each time it enters an order for an ICE Futures U.S. Contract, and that the applicant must be a Hedger for the purposes of each trade resulting from such an order;

(c) agree to notify the Applicant if the applicant ceases to be a Hedger;

(d) represent that it will only enter trades for its own account; and

(e) acknowledge that it is a market participant under the CFA and is subject to applicable requirements.

19. With respect to electronic trading via direct access or order-routing access, the Applicant will ensure that the guidance that it circulates to Clearing Members respecting the granting of such access to Ontario Participants indicates that the Clearing Member is permitted to grant direct access or order routing access to ICE Futures U.S. to an Ontario Participant provided that (i) the Ontario Participant is appropriately registered under the CFA to trade in ICE Futures U.S. Contracts or (ii) the Ontario Participant is a Hedger.

20. Based on the facts set out in the Application, the Applicant satisfies the criteria set out in Schedule "A" to this order;

AND WHEREAS based on the Application and the representations the Applicant has made to the Commission, the Commission has determined that the Applicant satisfies the criteria set out in Schedule "A" and that the granting of exemptions from recognition and registration to the Applicant would not be prejudicial to the public interest;

IT IS HEREBY ORDERED by the Commission that pursuant to section 147 of the OSA, the Applicant is exempt from recognition as a stock exchange under section 21 of the OSA, and pursuant to section 80 of the CFA, the Applicant is exempt from registration as a commodity futures exchange under section 15 of the CFA;

AND IT IS FURTHER ORDERED by the Commission that, pursuant to section 38 of the CFA, trades in ICE Futures U.S. Contracts by Hedgers who are ICE Futures U.S. Members or Direct Access Users are exempt from the registration requirement under section 22 of the CFA;

PROVIDED THAT the Applicant complies with the terms and conditions attached hereto as Schedule "B".

DATED at Toronto this 1st day of September, 2009.

"Mary Condon"
Commissioner
Ontario Securities Commission
 
"Margot Howard"
Commissioner
Ontario Securities Commission

 

SCHEDULE "A"

Criteria for Exemption from

Recognition/Registration as an Exchange

PART 1 REGULATION AND OVERSIGHT OF THE EXCHANGE

1.1 Regulation of the Exchange

The Exchange is regulated in an appropriate manner in another jurisdiction by a Foreign Regulator. The regulatory scheme of the Foreign Regulator is transparent and generally comparable to that in Ontario.

1.2 Authority of the Foreign Regulator

The Foreign Regulator has the appropriate authority and procedures for oversight of the Exchange. This oversight includes regular, periodic regulatory examinations of the Exchange by the Foreign Regulator.

PART 2 CORPORATE GOVERNANCE

2.1 Fair Representation

The governance structure of the Exchange provides for:

(i) appropriate, fair and meaningful representation on its Board and any committee thereof; and

(ii) appropriate representation by independent directors on the Board and any committee thereof.

2.2 Appropriate Provisions for Directors and Officers

There are appropriate qualifications, remuneration, limitation of liability and indemnity provisions for directors and officers.

2.3 Fitness

The Exchange takes reasonable steps to ensure that each officer and director is a fit and proper person and past conduct of each officer or director affords reasonable grounds for belief that the officer or director will perform his or her duties with integrity.

2.4 Conflicts of Interest

The Exchange has appropriate conflict of interest provisions for all directors, officers and employees.

PART 3 FEES

3.1 Fees

The Exchange's process for setting fees is fair, transparent and appropriate. Any and all fees imposed by the Exchange on its participants are equitably allocated, do not have the effect of creating barriers to access and are balanced with the criteria that the Exchange has sufficient revenues to satisfy its responsibilities.

PART 4 REGULATION OF PRODUCTS

4.1 Approval of Products

The products traded on the Exchange are approved by the appropriate authority.

4.2 Product Specifications

The terms and conditions of trading the products are in conformity with normal commercial business practices for the trade in the product.

4.3 Risks Associated with Trading Products

The Exchange maintains adequate provisions to measure, manage and mitigate the risks associated with trading products on the Exchange, including, but not limited to, margin requirements, intra-day margin calls, daily trading limits, price limits, position limits, and internal controls.

PART 5 ACCESS

5.1 Fair Access

The requirements of the Exchange relating to access to the facilities of the Exchange, the imposition of limitations or conditions on access and denial of access are approved by the Foreign Regulator and are fair and reasonable, including in respect of notice, an opportunity to be heard or make representations, the keeping of records, the giving of reasons and the provisions for appeals.

5.2 Details of Access Criteria

In particular, the Exchange

i. has written standards for granting access to trading on its facilities to ensure users have appropriate integrity and fitness;

ii. has and enforces financial integrity standards for those persons who enter orders for execution on the system, including, but not limited to, credit or position limits and clearing membership;

iii. does not unreasonably prohibit or limit access by a person or company to services offered by it.

iv. keeps records of each grant and each denial or limitation of access, including reasons for granting, denying or limiting access; and

v. restricts access to adequately trained system users who have demonstrated competence in the functions that they perform.

5.3 Access for Ontario Persons

The Exchange provides direct access, either through terminals, data feeds or third party provided interfaces, to only those Ontario persons that are duly registered or licensed under Ontario.

PART 6 RULEMAKING

6.1 Purpose of Rules

The Exchange maintains rules, policies and other similar instruments as are necessary or appropriate to govern and regulate all aspects of its business and affairs and such rules are designed to, in particular,

i. ensure compliance with the rules of the Exchange and securities legislation;

ii. prevent fraudulent and manipulative acts and practices;

iii. promote just and equitable principles of trade;

iv. foster cooperation and coordination with persons or companies engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in, the products trade on the Exchange;

v. provide for appropriate discipline;

vi. ensure a fair and orderly market; and

vii. ensure that the Exchange business is conducted in a manner so as to afford protection to investors.

6.2 No Discrimination or Burden on Competition

The rules of the Exchange do not

i. permit unreasonable discrimination among issuers, if applicable, and participants; or

ii. impose any burden on competition that is not reasonably necessary or appropriate.

PART 7 SYSTEMS AND TECHNOLOGY

7.1 System Capability/Scalability

For each of its systems that support order entry, order routing, execution, data feeds, trade reporting and trade comparison, capacity and integrity requirements, the Exchange:

i. makes reasonable current and future capacity estimates;

ii. conducts capacity stress tests of critical systems to determine the ability of those systems to process transactions in an accurate, timely and efficient manner;

iii. reviews the vulnerability of those systems and data centre computer operations to internal and external threats, including physical hazards and natural disasters;

iv. ensures that safeguards which protect a system against unauthorized access, internal failures, human errors, attacks and natural catastrophes that might cause improper disclosures, modification, destruction or denial of service are subject to an independent and ongoing audit which should include the physical environment, system capacity, operating system testing, documentation, internal controls and contingency plans;

v. ensures that the configuration of the system has been reviewed to identify potential points of failure, lack of back-up and redundant capabilities;

vi. maintains reasonable procedures to review and keep current the development and testing methodology of those systems; and

vii. maintains reasonable back-up, contingency and business continuity plans, disaster recovery plans and internal controls.

7.2 Information Technology Risk Management Procedures

Procedures are in place that:

i. handle trading errors, trading halts and circuit breakers;

ii. ensure the competence, integrity and authority of system users; and

iii. ensure that the system users are adequately supervised.

PART 8 FINANCIAL VIABILITY

8.1 Financial Viability

The Exchange has sufficient financial resources for the proper performance of its functions.

PART 9 CLEARING AND SETTLEMENT

9.1 Relationship with Clearing House

The Exchange has a clearing relationship with an established clearing house and all transactions executed on the Exchange are cleared through the Clearing House.

9.2 Regulation of the Clearing House

The Clearing House and direct clearing members are subject to acceptable regulation.

9.3 Authority of the Foreign Regulator

The Foreign Regulator has the appropriate authority and procedures for oversight of the Clearing House. This oversight includes regular, periodic regulatory examinations of the Clearing House by the Foreign Regulator.

9.4 Restrictions on Access to a Foreign Member

Any restrictions on access to the clearing system by a foreign member are adequately disclosed and justified by the legislation of the home jurisdiction, are not anti-competitive and do not unreasonably impose barriers to access.

9.5 Sophistication of Technology of Clearing House

The Exchange has assured itself that the information technology used by the Clearing House has been adequately reviewed and tested and provides at least the same level of safeguards as required of the Exchange.

9.6 Risk Management of Clearing House

The Exchange has assured itself that the Clearing House has established appropriate risk management policies and procedures, contingency plans, default procedures and internal controls.

PART 10 TRADING PRACTICES

10.1 Trading Practices

Trading practices are fair, properly supervised and not contrary to the public interest.

10.2 Market Making Provisions

Market making provisions and other provisions to ensure market liquidity, if any, are fair and equitable to all market participants.

10.3 Orders

Rules pertaining to order size and limits are fair and equitable to all market participants and the system for accepting and distinguishing between and executing different types of orders is fair, equitable and transparent.

10.4 Transparency

Adequate provision has been made to record and publish details of pricing and trading.

10.5 Market Limits

Market limits have been established as to ensure the integrity of the Exchange during times of volatility.

PART 11 COMPLIANCE, SURVEILLANCE AND ENFORCEMENT

11.1 Jurisdiction

The Exchange or the Foreign Regulator has the jurisdiction to perform member and market regulation, including the ability to set rules, conduct compliance reviews and perform surveillance and enforcement.

11.2 Member and Market Regulation

The Exchange or its Foreign Regulator maintains appropriate systems, resources and procedures for evaluating compliance with Exchange and legislative requirements and disciplining participants.

11.3 Record Keeping

The Exchange maintains adequate provisions for keeping books and records, including operations of the exchange, audit trail information on all trades and compliance and/or violations of Exchange requirements and securities legislation.

11.4 Availability of Information to Regulator

The Exchange has mechanisms in place to ensure that the information necessary to conduct adequate surveillance of the system for supervisory and enforcement purposes is available to the relevant regulatory authorities on a timely basis.

PART 12 INFORMATION SHARING AND OVERSIGHT ARRANGEMENTS

12.1 Information Sharing and Oversight Agreement

Satisfactory information sharing and oversight agreements exist among the OSC and the Foreign Regulator.

PART 13 IOSCO PRINCIPLES

13.1 IOSCO Principles

The Exchange adheres to the IOSCO principles to the extent consistent with the law of the foreign jurisdiction.

 

SCHEDULE "B"

Terms and Conditions

REGULATION OF ICE FUTURES U.S.

1. The Applicant will maintain its status as a DCM with the CFTC and will continue to be subject to the supervision of the CFTC, or any successor regulatory body, as a DCM, or any successor category of recognition.

2. The Applicant will continue to comply with its ongoing compliance requirements set out in the Core Principles under section 5 of the CEA or any successor compliance requirements.

3. The Applicant will continue to meet the criteria for exemption from registration as an exchange, as set out in Schedule "A".

ACCESS

4. The Applicant will not allow Ontario Participants to become Direct Access Users or ICE Futures U.S. members unless they are appropriately registered to trade in ICE Futures U.S. Contracts or are Hedgers.

5. Each Ontario Participant that intends to rely on the Hedger Relief will be required, as part of the application documentation to:

(a) represent that it is a Hedger;

(b) acknowledge that the Applicant deems the Hedger representation to be repeated by the Ontario Participant each time it enters an order for an ICE Futures U.S. Contract and that the Ontario Participant must be a Hedger for the purposes of each trade resulting from such an order;

(c) agree to notify the Applicant if it ceases to be a Hedger;

(a) represent that it will only enter trades for its own account; and

(e) acknowledge that it is a market participant under the CFA and is subject to applicable requirements.

6. The Applicant will require Ontario Participants to notify it if their registration or exemption from registration has been revoked, suspended or amended by the Commission and, following notice from the Ontario Participant or the Commission and subject to applicable laws, the Applicant will promptly restrict the Ontario Participant's access to ICE Futures U.S. if the Ontario Participant is no longer appropriately registered with or exempted by the Commission.

7. ICE Futures makes available to Ontario Participants appropriate training for each person who has access to trade in ICE Futures U.S. Contracts on the ICE Platform.

SUBMISSION TO JURISDICTION AND AGENT FOR SERVICE

8. The Applicant submits to the non-exclusive jurisdiction of (i) the courts and administrative tribunals of Ontario and (ii) an administrative proceeding in Ontario, in a proceeding arising out of, related to or concerning or in any other manner connected with the activities of ICE Futures U.S. in Ontario.

9. The Applicant will file with the Commission a valid and binding appointment of an agent for service in Ontario upon whom may be served a notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding arising out of or relating to or concerning the Applicant's activities in Ontario.

DISCLOSURE

10. The Applicant will provide to all Ontario Participants, and also require Ontario Participants that are registered FCMs under the CFA to distribute to Ontario clients, prior to the first trade by each client that is executed through the facilities of ICE Futures U.S., disclosure that states that:

(a) rights and remedies against the Applicant may only be governed by the laws of the United States, rather than the laws of Ontario and may be required to be pursued in the United States rather than in Ontario;

(b) the rules applicable to trading on ICE Futures U.S. may be governed by the laws of the United States, rather than the laws of Ontario; and

(c) ICE Futures U.S. is regulated by the CFTC, rather than the OSC.

FILING REQUIREMENTS

Prompt Notice

11. The Applicant will promptly notify staff of the Commission of any of the following:

(a) any material change to the information provided in the Application, including, but not limited to:

(i) changes to the regulatory oversight by the CFTC,

(ii) the corporate governance structure of ICE Futures U.S.,

(iii) the access model, including eligibility criteria, for Ontario Participants,

(iv) systems and technology, and

(v) the clearing and settlement arrangements for ICE Futures U.S.;

(b) any change or proposed change in the ICE Futures U.S. rules or regulations or the laws, rules and regulations in the United States relevant to futures and options on futures where such change may materially affect the ability of the Applicant to meet the criteria set out in Schedule "A" to this order;

(c) any known investigations or disciplinary action by the CFTC or any other regulatory authority to which the Applicant is subject relating to the discharge by the Applicant of its regulatory obligations;

(d) any matter known to the Applicant that may affect the financial or operational viability of ICE Futures U.S., including, but not limited to, any significant system failure or interruption;

(e) any default, insolvency or bankruptcy of any ICE Futures U.S. Member, direct access user or Clearing Member known to ICE Futures or its representatives that may have a material, adverse impact upon ICE Futures U.S., ICE Clear U.S. or any Ontario Participant.

Quarterly Reporting

12. The Applicant will maintain the following updated information and submit such information to the Commission on at least a quarterly basis, and at any time promptly upon the request of staff of the Commission:

(a) a current list of all Ontario Participants that are either exchange members or Direct Access Users;

(b) a list of all Ontario Participants that are either exchange members or Direct Access Users against whom disciplinary action has been taken in the last quarter by the Applicant or the CFTC with respect to activities on ICE Futures U.S.;

(c) a list of all investigations by the Applicant relating to Ontario Participants that are either exchange members or Direct Access Users;

(d) a list of all Ontario applicants who have been denied access to ICE Futures U.S.; and

(e) for each ICE Futures U.S. Contract, the total trading volume originating from Ontario Participants that are either exchange members or Direct Access Users and the proportion of worldwide trading volume on ICE Futures U.S. conducted by such Ontario Participants.

Annual Reporting

13. The Applicant will arrange to have the annual SAS 70 for ICE, Inc. filed with the Commission.

FINANCIAL VIABILITY

14. The Applicant will file with the Commission all annual financial statements required to be filed with the CFTC, within the same timeframes as required by the CFTC.

INFORMATION SHARING

15. The Applicant will, subject to applicable laws, share any and all information within the care and control of ICE Futures U.S. and otherwise co-operate wherever reasonable with the Commission or its staff.